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Delgado v. GGNSC Grand Island Lakeview LLC

United States District Court, D. Nebraska

September 23, 2016

TARA DELGADO, Plaintiff,
v.
GGNSC GRAND ISLAND LAKEVIEW LLC, Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         The following motions are pending before the court:

• Plaintiff s motion to compel, (Filing No. 37);
• Plaintiff s motion to substitute relief sought in the motion to compel, (Filing No. 43); and
• Plaintiff s motion to allow a brief in response to Defendant's sur-reply regarding Plaintiffs motion to compel. (Filing No. 44).

         For the reasons discussed below, Plaintiffs motion to compel will be granted in part and denied in part, and Plaintiff s motion to substitute and motion to file will be granted.

         BACKGROUND

         Plaintiffs complaint alleges she was subjected to sexual and gender-based harassment while working for the Defendant. (Filing No. 15 at CM/ECF p. 2). Plaintiff claims the harassment caused her extreme emotional distress and other psychological conditions. She requests an award of damages. (Filing No. 15 at CM/ECF p. 3). On November 24, 2015, the parties filed their Rule 26(f) Report of the Parties' Planning Conference. (Filing No. 8). In accordance with the report, the court entered its Final Progression Order and set a May 2, 2016 deadline for designating experts. (Filing No. 9).

         In July of 2016, Defendant requested a medical examination of Plaintiff by Dr. Bruce Gutnik. Sometime after the examination, Defendant clarified that Gutnik was a consulting expert and would not be preparing a report. (Filing No. 36 at CM/ECF p. 1). Counsel for the parties engaged in discussions regarding whether Plaintiff was entitled to depose Gutnik: They were unable to reach agreement.

         On August 26, 2016, Plaintiff filed her motion to compel the deposition of Gutnik. (Filing No. 37). In her reply brief, and in her motion to substitute relief, Plaintiff withdrew her request to depose, and instead requests an order compelling Defendant to produce a written report of Gutnik's examination findings. (Filing No. 41 at CM/ECF p. 1); Filing No. 43). Therefore, the court denies Plaintiff's motion to compel Gutnik's deposition as moot, but will instead consider the substituted and other types of relief requested in Plaintiff's motion to compel. The remaining issues are whether Plaintiff is entitled to an order requiring the creation and production of an examination report from Gutnik, and whether Plaintiff's deadline to designate experts should be extended. (See Filing No. 36).

         Plaintiff additionally filed a motion to file a brief in response to Defendant's sur-reply regarding the motion to compel and attached the proposed brief to the motion. (Filing No. 44). The court grants this motion and the undersigned has considered the attached brief in ruling on the pending motions.

         ANALYSIS

         Plaintiff argues that after submitting to a physical examination by Defendant's expert, Gutnik, under Federal Civil Procedure Rules 26 and 35(b), Gutnik must produce a written report and provide a copy to Plaintiff upon request.

Rule 35 governs examinations agreed to by parties and provides that after examinations, The party who moved for the examination must, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. The request may be made by the ...

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